SFERRUZZI v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SFERRUZZI v POLICE
[2016] SASC 83
Judgment of The Honourable Justice Stanley
10 June 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
The appellant in this matter pleaded guilty to one count of driving a motor vehicle while her licence was suspended, and four counts of failing to comply with a bail condition without reasonable excuse. On 26 March 2014 a magistrate recorded convictions for each offence and, utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed a bond in the amount of $500 to be of good behaviour for 12 months.
On 11 February 2016 the appellant filed a notice of appeal. By the time the notice of appeal was filed, the period of the bond had been served.
The appellant’s complaint concerns the recording of convictions for the contravention of s 91 of the Motor Vehicles Act 1959 (SA) and the contraventions of s 17 of the Bail Act 1985 (SA).
The appeal should have been instituted within 21 days of the imposition of sentence. Consequently it is one year, nine months and 26 days out of time. The appellant seeks an extension of time within which to bring the appeal.
Held:
1. The interests of justice do not warrant extending time in this matter. The appellant has not demonstrated any miscarriage of justice by the learned sentencing magistrate and the appeal lacks merit (at [8]).
2. For the appeal to succeed the appellant must show that the learned sentencing magistrate incorrectly exercised the sentencing discretion by taking into account an extraneous or irrelevant consideration, by failing to take into account a material consideration, by acting upon a mistaken view of the facts or law or by passing a sentence which was manifestly excessive. None of these factors were established (at [9]).
3. The application for an extension of time is refused (at [12]).
4. The appeal is dismissed (at [12]).
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 39; Motor Vehicles Act 1959 (SA) s 91; Bail Act 1985 (SA) s 17; Supreme Court Civil Rules 2006 (SA) r 281(1), referred to.
Jackamarra v Krakouer (1998) 195 CLR 516; Collins v State of South Australia and Parole Board of South Australia [2000] SASC 62; House v The King (1936) 55 CLR 499; Singh v Police [2013] SASC 155, considered.

SFERRUZZI v POLICE
[2016] SASC 83
Magistrates Appeal
STANLEY J:

The appellant in this matter pleaded guilty to one count of driving a motor vehicle while her licence was suspended, and four counts of failing to comply with a bail condition without reasonable excuse. On 26 March 2014 a magistrate recorded convictions for each offence and, utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), imposed a bond in the amount of $500 to be of good behaviour for 12 months. The appellant was legally represented at this hearing.
On 11 February 2016 the appellant filed a notice of appeal. By the time the notice of appeal was filed, the period of the bond had been served.
On appeal the appellant represented herself. It is apparent that the appellant’s complaint concerns the recording of convictions for the contravention of s 91 of the Motor Vehicles Act 1959 (SA) (the Motor Vehicles Act) and the contraventions of s 17 of the Bail Act 1985 (SA).
The appeal should have been instituted within 21 days of the imposition of sentence.[1] Consequently it is one year, nine months and 26 days out of time. The appellant seeks an extension of time within which to bring the appeal.
[1] 6SCR 281(1).
The granting of an extension of time within which to appeal is an evaluative exercise. The court must consider four matters in the exercise of its discretion. Those matters are the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal, and the degree of prejudice to the respondent.[2] The discretion to extend time is conferred for the sole purpose of doing justice between the parties.
[2] Jackamarra v Krakouer [1998] HCA 27 at [3] – [6], (1998) 195 CLR 516 at 520 – 521; Collins v State of South Australia and Parole Board of South Australia [2000] SASC 62 at [3].
In this matter the length of the delay is extensive. The appellant said that the reason for the delay was that at the time sentence was imposed, she was inclined meekly to accept situations in which she found herself. She said she suffered from depression and anxiety. She did not provide any medical evidence to support this submission. The appellant submits that she has undergone psychological treatment over the last six months which has enabled her to feel confident enough to appeal the sentence. She sought psychological help for various business and family pressures which she had been under at the time of the offending.
While she did not deny that she had driven a motor vehicle while her driver’s licence was suspended, and had breached conditions of her bail by failing to attend as required at a police station, she submitted that she felt targeted by police and treated like a criminal, in circumstances where she felt that the bail conditions were a “joke” and she was under all sorts of stress which resulted in her pleading guilty as she did not know what else to do. She seeks to have the convictions set aside as she is concerned that they may impede her ability to travel overseas in the future for business.
While the respondent does not submit that it would suffer any prejudice if an extension of time was granted, I am not persuaded that the interests of justice warrant extending time in this matter. The appellant has not demonstrated any miscarriage of justice by the learned sentencing magistrate and the appeal lacks merit.
For the appeal to succeed the appellant must show that the learned sentencing magistrate incorrectly exercised the sentencing discretion by taking into account an extraneous or irrelevant consideration, by failing to take into account a material consideration, by acting upon a mistaken view of the facts or law or by passing a sentence which was manifestly excessive.[3] None of these factors have been established.
[3] House v The King (1936) 55 CLR 499 at 504 – 505; Singh v Police [2013] SASC 155 at [33].
Section 39 of the Sentencing Act provided the learned sentencing magistrate with a discretion, “if good reason exists for doing so”, to discharge the appellant with or without recording a conviction. The sentencing remarks of the learned magistrate indicate that he considered this question but decided that good reason did not exist for discharging the appellant without recording a conviction and decided instead, based on the “circumstances” of the matter, to record convictions for the offences.
The Motor Vehicles Act is regulatory legislation. The preventative and deterrent aspects of punishment generally assume greater importance when sentencing for offences against regulatory legislation. While not depriving a sentencing magistrate of the discretion to proceed without recording a conviction, those considerations inform the exercise of that discretion. In considering the s 39 discretion, the learned magistrate in this case recognised that certain circumstances of the case supported a lenient approach but it did not justify not proceeding to record a conviction. It is relevant that the sentencing task before the magistrate required him to sentence not just for the regulatory offence but for four other offences of breaching bail. The explanation proffered by the appellant before me for the commission of those offences does not indicate that there was any error in the approach the magistrate took in recording convictions for those offences. Finally, there was no evidence before the magistrate, or this Court on appeal, that the appellant would suffer any detriment by reason of the convictions being recorded, in the event that in the future she wanted to travel overseas.
Conclusion
In the circumstances I would refuse the application for an extension of time and dismiss the appeal.

The appeal in the case of SFERRUZZI v Police was heard by the Supreme Court of South Australia. The appellant, SFERRUZZI, sought an extension of time to appeal against her conviction for driving offences, which was recorded on a guilty plea. The conviction included multiple charges, including driving without a licence and driving while disqualified, as well as charges for breaching bail conditions. The primary issue before the court was whether the appellant's appeal against her conviction was time-barred and, if not, whether the appeal should be allowed on the merits. The court had to consider the principles governing the exercise of discretion by the magistrate in sentencing, particularly in cases involving regulatory offences. Additionally, the court examined the procedural requirements for appealing to the Supreme Court from a magistrate's court decision in South Australia.

The court began by noting that the Motor Vehicles Act is regulatory legislation, which often necessitates a stronger focus on the preventative and deterrent aspects of sentencing. The court emphasised that while a sentencing magistrate retains the discretion to not record a conviction, this discretion should be informed by the specific circumstances of the case. In this instance, the magistrate recognised that certain circumstances warranted a lenient approach but did not justify not recording a conviction. The court found that the magistrate's decision to record convictions for the regulatory offences, as well as the breaches of bail, was consistent with the applicable legal principles. The appellant's explanation for the commission of the bail breaches did not indicate any error in the magistrate's approach. Moreover, there was no evidence that the appellant would suffer any detriment from the recorded convictions if she wished to travel overseas in the future.

In conclusion, the Supreme Court of South Australia held that the appeal was not time-barred and dismissed the appeal on the merits. The court refused the application for an extension of time and affirmed the original conviction and sentencing decisions made by the magistrate. The reasoning was grounded in the principles of sentencing for regulatory offences and the procedural requirements for appeals from the magistrate's court. The court found no grounds to interfere with the magistrate's exercise of discretion or the convictions recorded.

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Legal Principle Established